1
IMPLEMENTATION OF FUNDAMENTAL HUMAN RIGHTS PRINCIPLES IN
A CROSS-CULTURAL WORLD: A POSTPOSITIVIST INTERPRETATION OF
THE LAW
Érica Taís Ferrara Ishikawa
ABSTRACT
After the History of Law have witnessed the making of various protectionist documents
of the human person and his dignity, Science of Law still continues to evolve, changing
everyday the legal systems, writing down new rights and values or realizing them. The
past has shown us that the Legal Positivism alone does not support intercultural issues,
which is why human values and fundamental rights and principles should always be the
expression of the rule of law and if not, should be the grounds of a court decision if there
is a conflict of rules or legal principles. For this, the Brazilian legal system has two
principles that can be considered cross-cultural: the Principle of Proportionality and the
Principle of Solidarity. In addition to the Brazilian constitutional provision, the principle
of solidarity is explicitly found in Covenants, Treaties and International Declarations,
Constitutions and the 2000 Charter of Fundamental Rights of the European Union with
explicit application in horizontal form of fundamental rights. The interpretation of the
rule of law and its application that combines values and principles beyond the law
positively written is the expression of post-positivist thought. The decisions of the
Brazilian Supreme Court, guided and based on the constitutional principle of solidarity,
have demonstrated the importance of its application in each case, since such a principle
acting as protector of fundamental rights and values, seek refuge in the principle of
proportionality for proper preservation of human dignity.
KEYWORDS:
HUMAN
MULTICULTURALISM.
RIGHTS,
INTERCULTURAL
WORLD,
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SUMARY
INTRODUCTION ............................................................................................................ 2
2. THE HUMAN AND FUNDAMENTAL RIGHTS PRINCIPLES IN A CROSSCULTURAL WORLD ..................................................................................................... 4
3. POST-POSITIVISM IN A CROSS-CULTURAL WORLD ....................................... 9
4. THE POST-POSITIVISM AS AN WAY OF APPLICATION OF HUMAN AND
FUNDAMENTAL RIGHTS: CONCRETIZATION THROUGH THE PRINCIPLES OF
PROPORTIONALITY AND SOLIDARITY ................................................................ 11
CONCLUSION .............................................................................................................. 17
REFERENCES ............................................................................................................... 18
INTRODUCTION
Every legal system guided by the rule of law, is based on the importance of its positive
laws, giving legal certainty to citizens as well as ensuring compliance and enforcement
by all, even by the state itself.
The importance of the written laws is indisputable for several reasons: since its clarity,
transparency, publicity, to their sense of legal and social effectiveness. But the simple
application of cold letter of the written law has shown its incontestable rejection in the
past, legitimizing barbarous and inhuman acts face of the human person and his dignity,
in the pale argument that being planned as lawful, the acting was according the legal order
and therefore endowed with legality.
Thus, building a rule of law must always derive from a legitimate power that expresses
justice observing the phenomena of contemporary society, always rescuing and placing
in context the values and principles of law.
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It would not be wise to say that the law is inflexible and static, because, contrary to all
history that is evolving constantly for centuries, proving that the law does not walk alone,
but by the hands of the right operator, imbued not only legal knowledge and a dogmatic,
it is aware of the political, economic, social and cultural realities that circulate and finally
direct the laws and then fulfill their role in the system and in society.
For the abstract norm follow the dynamics of society, a daily work of legal doctrine is
necessary, otherwise its automatic imposition would lead operators the right to act as
instruments programmed to insert the standard to the case without considering
jurisprudence, legal principles, ethical and moral values, economic and political situation
and the diversity of cultures that impregnates society and that from time to time collide
with each other.
The current scenario shows how religion can influence the law of a country and therefore
all forms of state and its conduct in society.
Inhuman events in the face of innocent people, for example on behalf of a particular
religion, perplex the international community and has led to the search for a solution that
since the Universal Declaration of Human Rights of 1948, is latent to be applied in in the
pursuit of universal peace and the realization of human and fundamental rights.
Nothing is extreme is safe for the achievement of a right. Notably, does not confer the
right to freedom, equality and much less fraternity.
Therefore, it is necessary to collate the various anthropological sciences for the
development of a law that seeks to combine man, standards, society, technology,
globalization, development, religion and others, aiming at the realization of human and
fundamental rights. Which, incidentally, is no easy task. Part of these studies is carried
forward by those trying to combine interculturalism to the current scenario of law,
technology, human development, environment, genetics, among others.
Given the constant search for new conceptions of law, this studies are also constantly
evolving, as the dynamics of society and the development of every human being is
modified day by day, reason why it is so difficult to define a "golden rule" as advocated
by Aristotle. Or, a key standard for resolving issues involving interculturalism, even if
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part of the doctrine claims to be human rights the "golden rule", since it is universal
standard and doesn`t allow setbacks.
To reconcile ethical, moral, religious and legal norms, recognition of interculturalism is
relevant, in a legal way, to combine these concepts so that the rule of law takes precedence
over the other, since one has more rapid effectiveness in dealing with the central issue
protection of the integrity, dignity, human rights and duties, and at the same time, without
disrespecting religious, cultural norms, traditions and customs, contemplate all of them,
even minimally.
For this to occur, it is needed a post-positivist interpretation of the law, namely that a
decision is not based only on laws (which are sometimes outdated or insufficient), and
also not be without legal basis to apply legal principles, but rather a decision to consider
universal values and structuring current legal principles that correct inflexible
interpretations of law.
In this context, the post-positivism does not act consigning another way of application of
legal rules, but condensing precepts of theories of positivism and natural law, jointly
applying rules and principles as opposed to the contradictions of each theory. It creates
so another scenario where it encompasses the very best in both.
2. THE HUMAN AND FUNDAMENTAL RIGHTS PRINCIPLES IN A CROSSCULTURAL WORLD
It is often take as a starting point the analysis of the Magna Carta of 1215 which declared
rights and principles now considered human rights and fundamental characteristic of a
democratic state of law, such as the right to liberty, property, equality, due process, a
secular state, but seen before as innovative in a Monarchist State.
From the XIII century until the XVIII century the presence of the Church in state relations
was intense, especially in Europe, and as a result in South America due to the colonization
by Europeans that instead of giving citizens a greater recognition of their birthright or
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natural, fixed standards that lined the freedom of the person as the marriage institute,
property, criminal law and customs.
It was with the thought of St. Thomas Aquinas that philosophical thought eased the
natural law, particularly with regard to natural rights, where there was his concept in
relation to other laws defined by it, namely, the eternal laws and human laws:
(...) It must be said that something is said of natural law in two
ways. In one way, because it leans nature, as not to do harm to
others. Otherwise, because nature did not induce the other hand,
how can we say that being the naked man is of natural law
because nature did not give her robe, but art invented. And so "the
possession of all things, and one free of all" says to be of natural
law, because the distinction of possessions and servitude are not
induced by nature, but by the ratio of men to use human life. And
so that, the law of nature was not changed except by addition.
After the thought of St. Thomas Aquinas twined natural and human right to eternal or
divine law, it fell to Hugo Grotius in the XVII century unlink the natural rights of divine
rights, marking this period in philosophy of law.
To Hugo Grotius, natural rights would be unchanged even by God, contradicting St.
Thomas Aquinas for whom the natural law could be modified even by human law.
From that moment, to separate the divine natural rights, the man could think for itself and
evolve the science of law with other branches that could have the sanction of the Church
as the science of genetics, bioethics, biology, medicine.
Relevant documents are also the 1689 England Bill of Rights, which positively predicted
natural rights and the American Constitution of 1789 and the amendments made by the
1791 US Bill of Rights, which has greater protection of rights against the State and
explicitly left the separation of church and state as can be seen:
Article the seventh... No person shall be held to answer for a
capital, or otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in the land or
naval forces, or in the Militia, when in actual service in time of
War or public danger; nor shall any person be subject for the same
offence to be twice put in jeopardy of life or limb; nor shall be
compelled in any criminal case to be a witness against himself,
nor be deprived of life, liberty, or property, without due process
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of law; nor shall private property be taken for public use, without
just compensation. (…)
Amendment I. Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof;
or abridging the freedom of speech, or of the press; or the right of
the people peaceably to assemble, and to petition the Government
for a redress of grievances.
The American Bill of Rights expressed many rights that is also considered today as
natural rights and fundamental and human rights, as due process, freedom of speech and
press, a secular state, among others.
It was in this same year, months later, that as a result of the Enlightenment and the French
Revolution were defined ideas of the Declaration of the Rights of Man and Citizen of
1789 in France, were positivated a number of rights taken as natural.
Les Représentants du Peuple Français, constitués en Assemblée
Nationale, considérant que l'ignorance, l'oubli ou le mépris des
droits de l'Homme sont les seules causes des malheurs publics et
de la corruption des Gouvernements, ont résolu d'exposer, dans
une Déclaration solennelle, les droits naturels, inaliénables et
sacrés de l'Homme (...)
Art. 1er. - Les hommes naissent et demeurent libres et égaux en
droits. Les distinctions sociales ne peuvent être fondées que sur
l'utilité commune.
(...)
Art. 4. - La liberté consiste à pouvoir faire tout ce qui ne nuit pas
à autrui : ainsi, l'exercice des droits naturels de chaque homme n'a
de bornes que celles qui assurent aux autres Membres de la
Société la jouissance de ces mêmes droits. Ces bornes ne peuvent
être déterminées que par la Loi.
The flag of social equality was raised so that the other rights were recognized and
respected by the Monarchy as to dignity, property, liberty, due process and that the laws
should be an expression of the general will, that is, the installation of the characteristics
of a democratic state.
Later the first Constitutions in the early XIX century, the Universal Declaration of Human
Rights of 1948, have emerged as a standard in the formation and positivation of
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fundamental rights, extolling human dignity as the foundation of most of the legal systems
in general, as became part of the 1988 Brazilian Federal Constitution.
This documents show the evolution of society and the consequent transcendence of
positive law in all relationships, especially through its coercive and binding force,
expressing the will of citizens.
Among the values and rights, it is clear that human life, justice, dignity, property, equality
and freedom, demanding state protection and as human and fundamental rights, there is
no doubt about their normative validity and social effectiveness.
Accept the evolution of the Law of Science through the evolution of human beings and
their relationships is to link the growth of the human person in the sense that their rights
and duties should be able to meet and ensure a dignified life in society.
With the Universal Declaration of Human Rights, natural rights were considered human
or fundamental, however, with a difference: fundamental rights are, for the most part,
positivized in a Constitutional Charter and have more effective normative force, since the
human rights may or may not be positivized they are universal content, therefore, have
greater flexibility within a legal system.
For this reason, human rights have international protection in the face of alleged
violations, as stated by Jürgen Habermas "(...) the experiences of violated human dignity
promote a dynamic conflict of indignation which gives a new impetus to the hope of a
global institutionalization of human rights, yet so unlikely. "
This is one way in which we observe the evolution of the law: the development of society,
its new consciousness, openness to new interpretations, intercultural conceptions of
human dignity, as long as observed and implemented a minimum level of fundamental
rights, in face of the minimum rights violations historically considered.
Jürgen Habermas cites this process of evolution of new rights as follows:
In light of the historical challenges, in each time are updated other
dimensions of the meaning of human dignity. These
characteristics of human dignity, specified on each occasion can
lead to both further exploration of the normative content of
guaranteed fundamental rights, as the discovery and building of
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new fundamental rights. Thus the implicit intuition in the
background penetrates in the begining the awareness of those
affected and then the right texts, to then be conceptually
articulated.
In this context, where the fundamental rights are more present, dealing also with legal
systems that do not turn positive, either in the Constitution or the law, as stated Luigi
Ferrajoli:
(...) are "fundamental" rights granted by law to all individuals as
such, or as citizens or as able to act. But we say also, without our
definition been invalid, that a given legal system, for example,
totalitarian, is deprived of fundamental rights. The provision of
such rights by the positive law of a given system is, somehow, a
condition of its existence or force in that order, but does not focus
on the meaning of the concept of fundamental rights. Fewer still
focuses on this meaning its forecast in a constitutional text, which
is only a guarantee of compliance by the ordinary legislator: they
are fundamental, for example, also the certain rights of defense to
the accused by the Criminal Process Code, which is a statutory
law.
Even without a constitutional provision, fundamental rights do not lose their essence, its
meaning, however, as constitutionally guaranteed, their evaluative load becomes highly
guaranteed, preventing it from being deleted from the Constitution, as it was considered
a real social retrogression.
In this regard, Canotilho Gomes explains that the setback is included and conceptualized
as:
(...) The social and economic rights (e.g. workers' rights, right to
assistance, right to education), once achieved a certain level of
achievement, they constitute both an institutional guarantee and a
personal right. The "prevention of social regression" can do
nothing against recessions and economic crises (factual
reversibility), but the principle in question limits the reversibility
of acquired rights (e.g.: social security, unemployment benefits,
health benefits), in clear violation of the principle of protection of
confidence and security of citizens in the economic sphere, social
and cultural, and the core of the minimum existence inherent to
respect for human dignity.
It appears that before the new rights achieved by the development of society, the human
person calls for greater protection, even with the minimum warranty of existence, which
for Canotilho, "the problem today is placed before the deregulation of providing essential
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services (gas, water, telecommunications), thus imposing to the State the duty to adopt
measures neutralizing the reduction of social rights (...) ".
As will be seen in later, it will be up to the principles of human rights and fundamental
rights as fairness, legality, social justice, legal certainty, human dignity, freedom, access
to justice, due process, exercising the role of guarantors of a legal order democratic and
concrete their positivized or implied rights through a post-positivist interpretation is the
judiciary, is the right of the law operator.
3. POST-POSITIVISM IN A CROSS-CULTURAL WORLD
This discussion of assertiveness, innovation and the future of legal science finds support
in the critic of Tércio Sampaio Ferraz Junior, to whom: "deal with chronological time
while a positivity Cronos devours facts, consuming legal rights, swallows laws, becomes
a requirement and an obsession. "
There are the new positivized rights that are part of the context lived by society and that,
at present, are structuring for the development and consolidation of the rule of law.
Neither natural law and neither alone positivism could ensure that human and
fundamental rights are protected and implemented in the first case because not all natural
rights had normative and coercive force and the second because the already positivity
standards proved as war instruments and genocide.
The post-positivism, is presented as the theory that unifies the thought of natural law and
positivism, that is, unites principles and natural rights as the protection of life and dignity,
the fair redress of damage, the right to property and not being violated, a trial before
conviction, to not kill among others and principles and positivized rights as legal norms
contained for example in the 1988 Brazilian Federal Constitution, the Penal Code, the
Civil Process Code, as listed in previous chapter.
Thus, case-law that is based values and principles of natural law and the very positively
valued law, is a post-positivism of expression in practice, ie, judicial decisions are a way
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for the post-positivism is legally expressed, or through guaranteed rights or through the
principles.
When we face with various legal systems, the application of fundamental rights can
become a troublesome task ahead to new challenges that passes humanity: war, famine,
refugees, economic crisis, unemployment, climate change that cause illness and homeless
people.
Different jurisdictions also require the same or similar rights compared to others, as well
as rights that differ or are not in the legal system.
Interculturalism, while uniting people of different cultures, ethnicities, races, beliefs and
religions, customs also creates a comparative legal system if it is influenced or is based
on any religion, custom, belief or the story itself.
It is known that one of the best ways to reconcile the coexistence in a multicultural world
is intercultural dialogue, where you can find room for the break discussion of a common
ground between two nations, so if the issue is the definition of human dignity, the starting
point would be to know which International Pacts, statements the country is a signatory
as well as knowing which human and fundamental rights were positivized, to thereby
know the legal source that is based on the right to human dignity.
One way to act interculturalism through the post-positivism is the principle of solidarity
which has positions in all kinds of standards, or in its moral form, legal, religious,
political, economic. It is not new to support the principle of solidarity in our society, but
only in recent decades after the Second World War we recalled and fixed as a legal rule,
such as the Universal Declaration on Human Rights, the International Covenants on
Human Rights, the Bill of Rights fundamental Rights of the European Union, in the
constitutions of various countries, such as Brazil, Colombia, Portugal, among others.
The principle of solidarity acts in legal form, religious and moral, with normative force
and ontic application or deontic, depending on the context that applies.
This reinforces the presence of post-positivism in the relationship, because it acts with its
values and principles independently of the human rights and fundamental rights of the
rule of law be positively valued or not, deontic or not.
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Such understanding is increasingly raised in European studies after the 2000 European
Union Charter of Fundamental Rights devoted a chapter to the application of rules in the
form of 'should be' about solidarity, which leads us to interpret that the Charter is a legal
consequence in response to the two great wars of the twentieth century, which came to
raise subtracted principles during that period, avoiding an unwanted repetition.
4. THE POST-POSITIVISM AS AN WAY OF APPLICATION OF HUMAN AND
FUNDAMENTAL
RIGHTS:
CONCRETIZATION
THROUGH
THE
PRINCIPLES OF PROPORTIONALITY AND SOLIDARITY
The application of fundamental rights are not restricted in the relationship between state
and citizen, but it is the clear application in both vertical and horizontal of the fundamental
rights, when it comes to individual rights guaranteed constitutionally, for example, the
minimum power supply, water and other essential services to a dignified life.
There are cases where the extremely evaluative principles of human and fundamental
rights should be balanced and weighted even before a horizontal application of
fundamental rights. Not that this represents a weakening of the right or another, but seek
not to violate the core essence of the right itself on screen, by applying the principle of
proportionality.
In this sense, it has been pacified, for example, the understanding of electricity service
for people who need the balloon domiciliary oxygen, even in default with the supplier. It
remains clear horizontal effect in this case the protection and maintenance of fundamental
rights such as life, human dignity, health through standards and legal principles aimed at
protecting the essential core of the human being, his dignified existence.
The principle of proportionality aims, in such cases, the full protection of the essential
life and the core of human dignity, strengthening the importance of the principle of
solidarity as the basis of a court decision.
It stresses that the horizontal application of fundamental rights does not usurp the
autonomy and the right of the enterprise, but as limit it, even minimally, it protects the
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human life and the person’s dignity, not representing serious violation of the law before
otherwise, providing the social function of property.
Easily such rights come into conflict, since, as Habermas says, "the more strongly the
fundamental rights penetrate the whole of the legal system, most often extend their
influence beyond the vertical relationships of citizens"; meaning that fundamental rights
increasingly participate in the horizontal relations and, therefore, such rights should be
balanced, because "it increases collisions that require a balance between competing rights
claims."
Willis Santiago Guerra Filho’s teaching is appropriate regarding the function and purpose
of the principle of proportionality that "determines the search for a "compromise "(...)
never missing with respect, that is , wounding him its "essential core" where is enthroned
the value of human dignity. "
Also is implicitly the principle of solidarity, shaped by justice, proportionality and human
dignity, and that can be identified in the following passage in the judgment of the Superior
Court of Justice:
And there is no doubt about the need for protection, from the
judiciary, of the right to life, as opposed to other rights (even
fundamental), according to the principle of best interests.
Different position would cause offense to the principle of human
dignity, which is the ratio essendi of each enrolled fundamental
right in the Constitution.
But the principle of solidarity has been recognized in Brazil as a constitutional principle
by the 1988 Constitution, highlighted the moral plane of religion, going to put down their
conceptual and structural bases especially in the field of law.
This step change, which solidarity has gone as a moral principle, invoked only by the
religious community, to legal and constitutional principle, represented a major
breakthrough for the Brazilian law.
In this case, that principle is not restricted only to the relationship between state and
person, meaning to say that the principle of solidarity extends to horizontal relationships
of law, which include the relationships between enterprises and individuals, specifically
when suffering possible threat about right to life itself.
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However, it strikes the eye that the will of the Constituent really was the positivate
solidarity in the form of principles, since "by setting up optimization requirements, they
allow the balancing of values and interests (that don’t obey, as the rules, the logic of all
or nothing ), depending on your weight and the weight of other principles (...). "
This implies a major impact on system, since writes down a right or a value in the deontic
modality of the legal rule, as can be seen in the lesson Willis Santiago Guerra Filho,
clarifying its contents:
The rule of law, then, not currency or an imperative, an order
resulting from a voluntary manifestation, something the ontic
order, "being" (Sein), or a judgment resulting from a cognitive
manifestation of gnoseological nature, but something, so to speak,
"intermediary" between the two: a 'deontic expression, "a
prescription of a particular type, which acquires its specific legal
character when placed in the context of a legal system. These
expressions are allowed to reduce the logical propositions, with a
particular structure, which has (1) the description of a
hypothetical state-of-things (Sachverhalte), and (2) its
modalization in deontic terms through a "functor" whose basic
types are "mandatory", "prohibited", "permitted".
The application of a legal standard has different strengths when it comes to a legal
principle or rule of law, especially if the legal system devices still lack effectiveness, to
carry the positive law of the constitutions, treaties, declarations for holding such
principles and rules.
As you can see, the rule of law as a rule is accompanied by a prohibitory, mandatory or
optional determination. In the case of the 2000 EU Charter of Fundamental Rights, the
principle of solidarity is provided in a specific chapter covering modalities of the legal
rule in several articles as can be seen:
In Title IV, which belongs to Solidarity, art. 27 states that "should be guaranteed (...) the
information and consultation (...)". In art. 28: "Workers and employers (...) have (...) the
right to negotiate and conclude collective agreements (...) and to appeal (...)". In art. 29:
"All persons have the right of access to a free placement service." Moreover, the articles
have the following deontic modalities "have the right" (Articles 30, 31, 33, 34, 35.), "Is
prohibited" (Article 32.) "Shall enjoy" (Article 32.), "Is guaranteed "(Art. 33)," should
integrate "(Art. 37) and" shall ensure "(Art. 38).
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In this chapter, the Solidarity as a rule is to ensure the fundamental rights of workers as
well as protect their labor rights, which is an innovative vision of solidarity, ie solidarity
inserted in horizontal relations of law.
In fact, the distinction of principles and rules "is a particularly complex task" because the
discussion lies around the deontology of the norm and, to Canotilho, there are several
criteria used for the differentiation of rules and principles, not simply summarizing the
modalities deontic.
According to Luigi Ferrajoli, the principles have a much broader distinction of rules as
defined by Dworkin, since at that "most of the principles behave as rules".
When discussing and conceptualizing rules and principles, the struggle is fought by taking
into account natural law and positivist positions. Dworkin sets rules and principles clearly
as can be seen:
The difference between legal principles and legal rules is a logical
issue. The two sets of standards point to particular decisions about
legal obligation in particular circumstances but are distinguished
as to the nature of the guidance they offer. The rules are
applicable to the way the all-or-nothing. Given the facts a rule
stipulates, then either the rule is valid, in which case the answer
it supplies must be accepted, or not valid, and in this case does
not contribute to the decision.
(...) The principles have a dimension that the rules do not have the size of weight or importance. When principles intersect (...),
who will solve the conflict must take into account the relative
strength of each. This cannot be, of course, an accurate
measurement, and the judgment that determines that a principle
or a particular policy is more important than another will often be
controversial. Nevertheless, this dimension is an integral part of
the concept of a principle, so it makes sense to ask what weight
he has or how important it is. The rules do not have that
dimension.
This means that principles and rules are clear when making positive a value or a right. In
the case of solidarity, positively stated by the 1988 Federal Constitution as constitutional
legal principle and by the 2000 European Union Charter of Fundamental Rights as a legal
rule, as there is in its normative prescription a description of a deontic modality, it is stated
that there is a discrepancy not only in the content of each concept but also in its
effectiveness.
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As can be seen in the jurisprudence of the Brazilian Supreme Court, the principle of
solidarity has been applied as a basis to decide. Indeed, the direct action of
unconstitutionality No. 2,649, it was conceptualized the principle of solidarity:
"Brazilian Association of Intermunicipal, Interstate and
International Passenger Road Transport Companies - (ABRATI)
Constitutionality of the Law 8899 of 29 June 1994, granting free
passes to people with disabilities. Allegation of affront to the
principles of economic order.. , of equality, free enterprise and
property rights, and lack of funding source indication (articles 1,
IV, 5, XXII, and 170 of the Constitution.):. groundlessness (...) in
30-3 -2007, Brazil signed at UN headquarters, the Convention on
the rights of Persons with Disabilities and its Optional Protocol,
committing to implement measures to give effect to what was
adjusted. Law 8,899 / 1994 is part of public policies to insert
people with special needs in society and aims to equal
opportunities and the humanization of social relations, in
compliance with the foundations of the Republic of citizenship
and human dignity, which is concretized by definition means that
they may be achieved (ADI 2,649, Rep. Min. Carmen Lucia, trial
05.08.2008, plenary DJE of 17/10/2008.).
(...) Not only the State will be called upon to formulate public
policies that can lead to well-being, equality and justice, but
society will be to organize according to those values in order to
affirm that as a fraternal, pluralistic and unprejudiced community.
12. It is true that part of the doctrine does not consider the
Preamble as having legal force. Kelsen observed that the
Preamble "expressed political ideas, moral and religious that the
Constitution tends to promote. Generally, the Preamble does not
stipulate rules defined in relation to human conduct and therefore
lacks a legally important content. It has a rather ideological than
legal (Kelsen, Hans - Theory General del Derecho y del
Estado.2ª.ed, p 309..). Unlike Karl Schnmitt (sic) be defended in
the Preamble of the Constitution that would stablish in the
political decisions that characterize it, for it would not take care
of only if it just gives historical news text or be mere enunciation
decisions. It would be the preamble part of the constitutional law,
giving the true meaning of the rules that compose it. In Brazil,
taking care with specificity the subject, teaches José Afonso da
Silva that the preambles, "most of the time ... make explicit or
implicit reference to an undesirable past situation, and posit the
construction of a constitutional order in another direction, or a
situation of struggle in pursuit of justice and freedom purposes;
other times, follow a basic principle, political, social and
philosophical, of the system established by the Constitution. ... In
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any of these cases, the preambles are worth as a guide for the
interpretation and application of constitutional norms. They
therefore, have interpretative and integrative effectiveness
"(contextual Commentary on the Constitution, Malheiros, 2006,
p. 22).
And, referring expressly to the Preamble of the 1988 Brazilian
Constitution asserts José Afonso da Silva, "The Democratic State
of Law is intended to ensure the exercise of certain supreme
values. “To Secure” has, in the context, function of dogmatic
constitutional guarantee; not, however, guarantee the abstract
values, but its 'exercise'. This sign plays, there, a pragmatic
function, because, in order to 'ensure', has the immediate effect of
prescribing the State an action for the effective realization of that
values toward (policy role) recipients of constitutional norms that
give these specific content values "
It remains clear the concept of the principle of solidarity with horizontal effectiveness of
the fundamental rights to explicitly stipulate that that takes the place of constitutional
principle in the Brazilian legal system:
13. In the wake of these supreme values explicit in the Preamble
of the 1988 Constitution is that it is stated in the existing
constitutional requirements, the legal principle of solidarity. (...)
The constitutional principle of solidarity is therefore in the
Brazilian system, undeniable expression and defined effects,
require not only the state but all of society. No longer think or act
according to the dictates of "to each what is his," but "to each
according to his needs."
And the responsibility for the production of these social effects
are not exclusive of the state, but that of the whole society.
It is important to note that the horizontal application of fundamental rights, will always
have the primary duty to protect and give effectiveness of human dignity, as stated by
Habermas: "human dignity is a seismograph that shows what is constitutive for the legal
order"; reinforcing the need for practical implementation of the principle of solidarity in
cases of violation of fundamental rights.
Thus, undoubtedly the principle of solidarity has normative force that, ethically, this
principle is not only used as a post-positivist substantiation and protection of fundamental
rights, but that through it there is the realization of these rights, proving the assertion that
the current situation does not depend only on the state action but of all members of
society.
17
CONCLUSION
The law changes creating a three-dimensional wave capable of reaching the environment
in which society lives, the human being and his awareness of the need for positive
fundamental rights and duties for legal protection are able to organize community life, by
resolution of conflicts generated in interpersonal relations and the state.
This dynamic manifested by the science of law, always involves human values that must
be protected against non-fundamental rights backspace permission when it involves
human life and dignity.
In this vein, it appears that the principle of solidarity ultimately solidify the understanding
of the need for their practical application, especially in the case of collision of
fundamental principles and rights, or in relations with the state (vertical application) or
with particular (horizontal application), culminating in a post-positivist interpretation of
the law.
It can be concluded that the principle of solidarity and the principle of proportionality are
today, in its application, a post-positivist interpretation of the law, therefore, has
characteristics of moral and ethical standards and legal, and in its effectiveness no matter
belong to one or other doctrinal current, but results in an intercultural society.
By having human rights principles a universal content, applying a post-positivist
interpretation of the law in intercultural relations is less complex for the application of
fundamental rights, which can have their content changed in order to order.
Nevertheless, since increasingly faced with new positivized rights, we may in the future
have very similar legal systems in their human and fundamental rights content, as has
been happening since the Second World War.
When faced with legal systems that make positive the values and principles of human
rights and fundamental rights, the law evolves turning positive standard in concretization
standards of rights and the expression of a fair community.
18
Thus, more and more nations must articulate and maintain intercultural dialogue so that
there is consensus within the law, especially as the minimum content of fundamental
rights, which increasingly come close nations to maintain peace.
Thus, it turns out that the world today needs to revive what is intrinsic in humans and
positively state in the standard of solidarity in their spontaneous and legal form for the
purpose of realization of human rights and fundamental rights in intercultural societies.
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